Dún Laoghaire Rathdown County Council is pursuing businessmen Paddy Shovlin and hoteliers Patrick Fitzpatrick and Anthony Fitzpatrick for €12.8 million in alleged outstanding planning contributions related to the Beacon South Quarter development in Sandyford, Dublin.
Mr Justice Peter Kelly ruled today the council, in the manner of bringing its claim, had failed to show it had acted with the urgency required for the proceedings to be fast-tracked in the Commercial Court.
On that basis, he refused to transfer the case to the Commercial Court list, meaning it will have to proceed at a slower pace through the ordinary High Court list.
In seeking transfer, Aidan Redmond SC, for the council, said the National Assets Management Agency (Nama) had secured judgment over unpaid bank loans related to the Beacon development against the three defendants last week and it was against that background the matter was urgent.
Mr Shovlin previously acknowledged a liability before later disputing any personal liability by the defendants, he added.
Caroline Costello for the defendants, said the Council’s letter of demand was issued 11 months ago, the sum sought was later reduced and the managerial order giving the go-ahead for proceedings was issued just last June. The Council had failed to show the required urgency, she said.
The proceedings are against Mr Shovlin, Kerrymount Avenue, Foxrock, Co Dublin; Patrick Fitzpatrick, Dargle Lodge,
Cookstown Road, Enniskerry, Co Wicklow and Anthony Fitzpatrick, Treethorpe, Brennanstown Road, Cabinteely, Co Dublin.
The Council claims the three defendants traded as “Landmark Developments” which was engaged in the Beacon South Quarter development. In granting permissions for that development, the Council imposed conditions requiring the payment of contributions for public infrastructure and other facilities, including towards the cost of extending the Luas Line from Sandyford to Cherrywood.
The Beacon South Quarter development commenced in December 2004 and it was agreed, subject to various conditions, the defendants would pay the financial contributions via instalments to be paid upon the closing of sale of every 100 residential units and of every commercial unit, the Council claimed.
The defendants paid contributions totalling some €7.88 million between 2006 and 2009 but outstanding contributions amounted to some €12.5 million, it was alleged.
The court heard Mr Shovlin, in an affidavit sworn for a defence and counter-claim to proceedings by the Council in July before the Master of the High Court, had argued the development at Beacon South Quarter was carried out by Landmark Enterprises Ltd and, while the defendants were the owners of the lands, they were not the developer.
Mr Shovlin claimed Landmark was required by the Council to carry out very considerable works which were not conditions of the permissions granted and which resulted in a loss to the defendants. He claimed entitlement to set-off in that regard and also said Landmark could not complete the instalments due to the global financial crisis and the collapse in the Irish property market.
Development effectively ceased in April 2008, he said.
While he accepted no financial contributions were made since August 2009, it was apparent the council itself had had difficulty calculating exactly what was owed, Mr Shovlin said.
While he accepted he had sent an email in April last agreeing the total due for financial contributions was about €12.8 million, he said this was an approximate figure which had not been finalised and, for example, calculation related to car parking facilities was not agreed.
It was also important to note he accepted no liability for that sum either for himself or the other defendants, Mr Shovlin said. The borrowings were by Landmark, not the defendants, he said.
Last week, in the first court application of its type, Nama secured summary judgment for some €38.5 million against Mr Shovlin and for some €22 million each against the Fitzpatrick’s over unpaid loans to their companies by Bank of Ireland, including a €280 million loan to Landmark Enterprises for the Beacon South Quarter development.
On the same day, Ulster Bank secured a €6.4 million summary judgment order against Mr Shovlin and €3.27 million summary judgment against both Fitzpatricks.